§13-2C-21. Ceiling on issuance of private activity bonds;
establishing procedure for allocation and
disbursements; reservation of funds; limitations;
unused allocation; expirations and carryovers.
(a) Private activity bonds (as defined in Section 141(a) of
the United States Internal Revenue Code of 1986, other than those
described in Section 146(g) of the Internal Revenue Code) issued
pursuant to this article, including bonds issued by the West
Virginia public energy authority pursuant to subsection (11),
section five, article one, chapter five-d of this code or under
article eighteen, chapter thirty-one of this code, during any
calendar year may not exceed the ceiling established by Section
146(d) of the United States Internal Revenue Code. It is hereby
determined and declared as a matter of legislative finding: (i)
That, in an attempt to promote economic revitalization of
distressed urban and rural areas, certain special tax incentives
will be provided for empowerment zones and enterprise communities
to be designated from qualifying areas nominated by state and local
governments, all as set forth by Section 1391, et seq., of the
United States Internal Revenue Code; (ii) that qualified businesses
operating in enterprise communities and empowerment zones will be
eligible to finance property and provide other forms of financial
assistance as provided for in Section 1394 of the United States
Internal Revenue Code; and (iii) that it is in the best interest of
this state and its citizens to facilitate the acquisition, construction and equipping of projects within designated
empowerment zones and enterprise communities by providing an
orderly mechanism for the commitment of the annual ceiling for
private activity bonds for these projects. It is hereby further
determined and declared as a matter of legislative finding: (i)
That the production of bituminous coal in this state has resulted
in coal waste which is stored in areas generally referred to as gob
piles; (ii) that gob piles are unsightly and have the potential to
pollute the environment in this state; (iii) that the utilization
of the materials in gob piles to produce alternative forms of
energy needs to be encouraged; (iv) that Section 142(a)(6) of the
United States Internal Revenue Code of 1986 permits the financing
of solid waste disposal facilities through the issuance of private
activity bonds; and (v) that it is in the best interest of this
state and its citizens to facilitate the construction of facilities
for the generation of power through the utilization of coal waste
by providing an orderly mechanism for the commitment of the annual
ceiling for private activity bonds for these projects.

(b) On or before the first day of each calendar year, the
Executive Director of the Development Office shall determine the
state ceiling for the year based on the criteria of the United
States Internal Revenue Code. The annual ceiling shall be
allocated among the several issuers of bonds under this article or
under article eighteen, chapter thirty-one of this code as follows:

(1) For the calendar year two thousand one, fifty million dollars and for each subsequent calendar year, forty percent of the
state ceiling for that year shall be allocated to the West Virginia
Housing Development Fund for the purpose of issuing qualified
mortgage bonds, qualified mortgage certificates or bonds for
qualified residential rental projects;

(2) The amount remaining after the allocation to the West
Virginia Housing Development Fund described in subdivision (1) of
this subsection shall be retained by the West Virginia Development
Office and shall be referred to in this section as the "state
allocation";

(3) Thirty-five percent of the state allocation shall be set
aside by the development office to be made available for lessees,
purchasers or owners of proposed projects, hereafter in this
section referred to as "nonexempt projects", which do not qualify
as exempt facilities as defined by United States Internal Revenue
Code. All reservations of private activity bonds for nonexempt
projects shall be approved and awarded by the committee based upon
an evaluation of general economic benefit and any rule that the
development office promulgates pursuant to section two, article
two, chapter five-b of this code: Provided, That all requests or
reservations of funds from projects described in this subsection
are submitted to the development office on or before the first day
of November of each calendar year: Provided, however, That on the
fifteenth day of November of each calendar year, the uncommitted
portion of this part of the state allocation shall revert to and become part of the state allocation portion described in subsection
(g) of this section; and

(4) Ten percent of the state allocation shall be made
available for lessees, purchasers or owners of proposed commercial
or industrial projects which qualify as exempt facilities under
Section 1394 of the United States Internal Revenue Code. All
reservations of private activity bonds for the projects shall be
approved and awarded by the committee based upon an evaluation of
general economic benefit and any rule that the development office
promulgates pursuant to section two, article two, chapter five-b of
this code: Provided, That all requests for reservations of funds
from projects described in this subsection shall be submitted to
the development office on or before the first day of November of
each calendar year: Provided, however, That on the fifteenth day
of November of each calendar year the uncommitted portion of this
part of the state allocation shall revert to and become part of the
state allocation portion described in subsection (g) of this
section.

(c) The remaining fifty-five percent of the state allocation
shall be made available for lessees, purchasers or owners of
proposed commercial or industrial projects which qualify as exempt
facilities as defined by Section 142(a) of the United States
Internal Revenue Code. All reservations of private activity bonds
for exempt facilities shall be approved and awarded by the
committee based upon an evaluation of general economic benefit and any rule that the development office promulgates pursuant to
section two, article two, chapter five-b of this code: Provided,
That no reservation may be in an amount in excess of fifty percent
of this portion of the state allocation: Provided, however, That
all requests for reservations of funds from projects described in
this subsection shall be submitted to the development office on or
before the first day of November of each calendar year: Provided
further, That on the fifteenth day of November of each calendar
year the uncommitted portion of this part of the state allocation
shall revert to and become part of the state allocation portion
described in subsection (g) of this section.

(d) No reservation may be made for any project until the
governmental body seeking the reservation submits a notice of
reservation of funds as provided in subsection (e) of this section.
The governmental body shall first adopt an inducement resolution
approving the prospective issuance of bonds and setting forth the
maximum amount of bonds to be issued. Each governmental body
seeking a reservation of funds following the adoption of the
inducement resolution shall submit a notice of inducement signed by
its clerk, secretary or recorder or other appropriate official to
the development office. The notice shall include information
required by the development office pursuant to any rule of the
development office. Notwithstanding the foregoing, when a
governmental body proposes to issue bonds for the purpose of: (i)
Constructing, acquiring or equipping a project described in subdivision (3) or (4), subsection (b) of this section; or (ii)
constructing an energy producing project which relies, in whole or
in part, upon coal waste as fuel, to the extent the project
qualifies as a solid waste facility under Section 142(a)(6) of the
United States Internal Revenue Code of 1986, the project may be
awarded a reservation of funds from the state allocation available
for three years subsequent to the year in which the notice of
reservation of funds is submitted, at the discretion of the
Executive Director of the Development Office: Provided, That no
discretionary reservation may be made for any single project
described in this subsection in an amount in excess of thirty-five
percent of the state allocation available for the year subsequent
to the year in which the request is made.

(e) Currently with or following the submission of its notice
of inducement, the governmental body at any time considered
expedient by it may submit its notice of reservation of funds which
shall include the following information:

(1) The date of the notice of reservation of funds;

(2) The identity of the governmental body issuing the bonds;

(3) The date of inducement and the prospective date of
issuance;

(4) The name of the entity for which the bonds are to be
issued;

(5) The amount of the bond issue or, if the amount of the bond
issue for which a reservation of funds has been made has been increased, the amount of the increase;

(6) The type of issue; and

(7) A description of the project for which the bonds are to be
issued.

(f) The development office shall accept the notice of
reservation of funds no earlier than the first calendar workday of
the year for which a reservation of funds is sought: Provided,
That a notice of reservation of funds with respect to a project
described in subdivision (4), subsection (b) of this section or an
energy producing project that is eligible for a reservation of
funds for a year subsequent to the year in which the notice of
reservation of funds is submitted may contain an application for
funds from a subsequent year's state allocation. Upon receipt of
the notice of reservation of funds, the development office shall
immediately note upon the face of the notice the date and time of
reception.

(g) If the bond issue for which a reservation has been made
has not been finally closed within one hundred twenty days of the
date of the reservation to be made by the committee, or the
thirty-first of December following the date of reservation if
sooner and a statement of bond closure which has been executed by
the clerk, secretary, recorder or other appropriate official of the
governmental body reserving the bond issue has not been received by
the development office within that time, then the reservation shall
expire and be considered to have been forfeited and the funds reserved shall be released and revert to the portion of the state
allocation from which the funds were originally reserved and shall
then be made available for other qualified issues in accordance
with this section and the Internal Revenue Code: Provided, That as
to any reservation for a nonexempt project or any reservation for
a project described in subdivision (4), subsection (b) of this
section that is forfeited on or after the first day of November in
any calendar year, the reservation shall revert to the state
allocation for allocation by the industrial revenue bond allocation
review committee: Provided, however, That as to any notice of
reservation of funds received by the development office during the
month of December in any calendar year with respect to any project
qualifying as an elective carry forward pursuant to Section
146(f)(5) of the Internal Revenue Code, the notice of reservation
of funds and the reservation to which the notice relates may not
expire or be subject to forfeiture: Provided further, That any
unused state ceiling as of the thirty-first day of December in any
year not otherwise subject to a carry forward pursuant to Section
146(f) of the Internal Revenue Code shall be allocated to the West
Virginia housing development fund which shall be considered to have
elected to carry forward the unused state ceiling for the purpose
of issuing qualified mortgage bonds, qualified mortgage credit
certificates or bonds for qualified residential rental projects,
each as defined in the Internal Revenue Code. All requests for
subsequent reservation of funds upon loss of a reservation pursuant to this section shall be treated in the same manner as a new notice
of reservation of funds in accordance with subsections (d) and (e)
of this section.

(h) Once a reservation of funds has been made for a project
described in subdivision (4), subsection (b) of this section,
notwithstanding the language of subsection (g) of this section, the
reservation shall remain fully available with respect to the
project until the first day of October in the year from which the
reservation was made at which time, if the bond issue has not been
finally closed, the reservation shall expire and be considered
forfeited and the funds reserved are released as provided in said
subsection.